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Copyright Law Ronald W. Staudt Class 12 October 8, 2013.

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1 Copyright Law Ronald W. Staudt Class 12 October 8, 2013

2 Overview zReview Scope of Transfers yCohen v. Paramount yBoosey & Hawkes yRosetta Books yJacobsen and questions pp. 368-9 zCollective works yTasini yReed Elsevier zCommunity Property

3 § 201. Ownership of copyright (d) Transfer of ownership. (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

4 A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

5 § 204. Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

6 Scope of Transfer Cohen v. Paramount Medium Cool – trailer “Merry Go Round”trailer $69k zPerhaps the primary reason why the words "exhibition by means of television" in the license cannot be construed as including the distribution of videocassettes for home viewing is that VCRs for home use were not invented or known in 1969, when the license was executed.

7 Scope of Transfer Cohen v. Paramount “exhibition by means of television…including pay television, subscription television and closed circuit into homes… yV. yLucasfilm: “…by any means or methods now or hereafter known…” yRooney: “by any present or future methods or means…now known or unknown…” zPurpose of act: grant enforceable rights to authors to encourage production…

8 Boosey & Hawkes Fantasia – “The Rite of Spring” $360,000k Barsch rule of construction: "if the words are broad enough to cover the new use, it seems fairer that the burden of framing and negotiating an exception should fall on the grantor," at least when the new medium is not completely unknown at the time of contracting.” “…intent is not likely to be helpful when the subject of the inquiry is something the parties were not thinking about.” past dealing, custom similarly useless in interpretation “Neither the absence of a future technologies clause in the Agreement nor the presence of the reservation clause alters that analysis.”

9 Boosey & Hawkes Fantasia – “The Rite of Spring” $360,000kThe Rite of Spring” “to record in any manner medium or form” doubtless extends to videocassette recording as does motion picture reproduction rights… Two approaches to interpretation: Cohen’s “unambiguous core.” approach, favoring authors Nimmer’s “uses that reasonably fall within the medium” neutral approach “If a new-use license hinges on the foreseeability of the new channels of distribution at the time of contracting -- a question left open in Bartsch - - Disney has proffered unrefuted evidence that a nascent market for home viewing of feature films existed by 1939.” But what about ASCAP provision?

10 Questions p. 363 zCohen and Boosey consistent? zDistribution right? zWhy favor grantor/drafter? zWhat to do???

11 Random House Inc. v. Rosetta Books, Llc.: Exclusive right to publish the works “in book form” yWhat is a book? y“Noncompete” clause yPhotocopy clause yBoosey and Bartsch? xLanguage xMedium xOriginal v derivative works xAnti-progressive incentives

12 Questions 368 & Jacobsen zPosterized yacht photos zRevised report on juvenile justice xgovernment reserves a royalty-free non-exclusive and irreversible license to reproduce, publish, and use such materials in whole or in part and to authorize others to do so. zOpen source software license

13 Contributions to collective works 17 U.S.C. 201 (c) Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

14 Tasini v. New York Times Facts What is a newspaper? What does LexisNexis display? How is each database prepared? What are the best analogies? Microfiche? Individual articles cut out? Is it just a matter of money? When did the infringement occur? What about history & research? Supreme Court Argument Tribe Now what? Class action by authors in SD NY…

15 Ginsburg Nails Publishers’ Inconsistency on Registration OCTOBER 13, 2009 “In a revealing exchange, Justice Ginsburg pressed Charles Sims, representing Reed Elsevier and the other petitioner-defendants, on whether the publishers had taken inconsistent positions: “That is, back in the district court before there was a settlement, you urged before the district court that 411(a) was a jurisdictional bar and that that precluded certifying a class that included the non-registered copyright holders. You did make that argument in the district court, and now you are saying -- you are confessing error, that was wrong?” None too diplomatically, Sims confessed to being guilty only of loose language – “exactly the loose language that this Court was guilty of” in a couple of cited cases. “Well, you shouldn’t use loose language,” Justice Antonin Scalia countered dryly, “especially when it’s the same loose language, supposedly, that seems to have been used by all the courts …”

16 Reed Elsevier v. Muchnick 130 S.Ct. 1237 (2010) z…§ 411(a) does not implicate the subject-matter jurisdiction of federal courts. Although § 411(a)'s historical treatment as "jurisdictional" is a factor in the analysis, it is not dispositive. The other factors discussed above demonstrate that § 411(a)'s registration requirement is more analogous to the nonjurisdictional conditions we considered in Zipes and Arbaugh than to the statutory time limit at issue in Bowles. 8 We thus conclude that § 411(a)'s registration requirement is nonjurisdictional, notwithstanding its prior jurisdictional treatment.

17 Community Property zWorth zRodrigue

18 Beneficial Ownership § 501. Infringement of copyright *** (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. Fantasy v. Fogarty

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